FROM:
Mary Miles (SB #230395)
Attorney at Law for
Coalition for Adequate Review
TO:
Angela Calvillo, Clerk, and
San Francisco Board of Supervisors
Room 244 City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
DATE: November 17, 2017
RE: BOS File No. 171147
APPELLANT'S OPENING BRIEF IN SUPPORT OF APPEAL TO BOARD OF SUPERVISORS OF CEQA DETERMINATION AND APPROVAL OF "HAIRBALL INTERSECTION IMPROVEMENT PROJECT"
This Appeal is of the San Francisco Planning Department's undated environmental determination at File No. 2017-001775-ENV on the "Hairball" Project," ("Project") approved by the San Francisco Municipal Transportation Agency ("MTA") Board of Directors on September 19, 2017, in violation of the California Environmental Quality Act ("CEQA") (Pub. Res. Code §§21000 et seq.) The categorical exemption is attached as Exhibit A.
PRELIMINARY OBJECTIONS
First, Appellant objects to any participation in this appeal by Supervisor Hillary Ronen due to her predisposition to deny this appeal and her public promotion of the Project. CEQA requires that this Board determine any CEQA appeal objectively. Ms. Ronen has already publicly stated that she is committed to approving the Project and funding it. (Rachel Swan, "S.F. Supervisor pushes to untangle freeway Hairball," San Francisco Chronicle, 8/4/17 [Ronen "has refused to let cost projections get in the way of her vision. 'I don't want us to be limited by finances,' she said. 'I want to think big.'" (copy attached hereto as Exhibit F)]; San Francisco Examiner, 10/1/17 [Ronen stated "We're going to do everything we can to block off and make it impossible to camp in the Hairball." (copy attached hereto as Exhibit G)])
Such predisposition violates CEQA's requirement of objective decision-making by public agencies. (See, e.g., Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 917-919 [agency must be objectively conduct environmental review before approving a project]; Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116, 132-134 [CEQA forbids an agency's commitment to a project before environmental review has been completed]; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 394) Further, Ms. Ronen has also publicly stated that both she and her husband have a personal interest in the Hairball Project.[1] Ms. Ronen should therefore recuse herself from participating in this Appeal and any other determination on the Hairball Project.
Appellant also objects to MTA's hearing on this Project without making the environmental determination publicly available before the MTA Board heard this item on September 19, 2017. The Categorical Exemption document was only made available after a Sunshine Ordinance/Public Records Act Request. MTA's failure to make publicly available the environmental documents before its hearing violate San Francisco Administrative Code §67.7(d), which prohibits any action or decision on an item not on the agenda; and CEQA, which requires City to consider environmental determinations before approval and to make them publicly available. (e.g., Laurel Heights, supra, 47 Cal.3d 376, 394, 404-405).
Since MTA did not timely provide the public environmental documents, including its claimed Categorical Exemption or any supporting documents on this Project, the public was denied the right and opportunity for meaningful comment and input on it. (Id.)
Appellant further objects to Board of Supervisors procedures requiring comment eleven days in advance of the Board's hearing. CEQA allows public comment up to and including the date of the hearing or final disposition of the Board. (e.g., Bakersfield Citizens for Local Control v. City of Bakersfield ["Bakersfield"] (2004) 124 Cal. App. 4th 1184, 1199-1202; 14 Cal. Code Regs. ["Guidelines"] §15202(b); PRC §21177(a).)
The right to public comment is undermined by the Board's time constraints, which deprive Appellant and the public of the right to be heard and to fully set forth their position.
Moreover, Appellant is not subject to "exhaustion" requirements in future proceedings where the lead agency does not conduct public proceedings before its environmental determination. (Ibid.; see also Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster ["Azusa"] (1997) 52 Cal.App.4th 1165, 1209-1210) As demonstrated by this Board's consistent denials of every public CEQA appeal, exhaustion of administrative remedies is not required, because appeal is futile.
Appellant also objects to the requirement to pay $597 in advance to file an appeal to this Board, which is prohibitively expensive and beyond the means of many people. An appeal should be allowed regardless of payment, and payment should not be required pending the decision on an application for fee waiver.
INTRODUCTION
Since the "Hairball" Project clearly has significant direct, indirect, and cumulative impacts adversely affecting transportation, air quality, GHG, public safety (including emergency vehicle access), parking, energy consumption, and human impacts, it is not exempt under CEQA. (See, e.g., PRC §§21001; 21083.05, 21084(e); Guidelines §§15064, 15065(a).) The 2009 Environmental Impact Report ("EIR") on City's Bicycle Plan Project identified 27 significant impacts of the Project before its recent incarnation as "the Hairball" Project, which precludes any exemption, regardless of MTA's repackaging it under a different name.
City attempts to avoid environmental review of the "new" Hairball Project by illegally segmenting it into 15 small parts, three of which were approved September 19, 2017 by Resolution of the SFMTA Board in violation of CEQA. SFMTA claims that the three segments, labeled "M," "N," and "O," are exempt from CEQA review under a secret, undated "categorical exemption," which was not publicly available at any time prior to the September 19, 2017 MTA Board approval. The Categorical Exemption claims that "Segments M, N, and O" are categorically exempt under CEQA Guidelines §15301. However, neither the Hairball Project nor its improper segmentation are exempt from CEQA.
The Hairball Project was originally created by MTA as part of the San Francisco Bicycle Plan Project. MTA now coins a new name for the mess it created: "Hairball," a term defined in Webster as “a compact mass of hair formed in the stomach esp. of a shedding animal (as a cat) that cleanses its coat by licking.” In fact, the dangerous mess on Cesar Chavez was created by and for the MTA and the San Francisco Bicycle Coalition, a private lobbying organization, beginning with the 2005 Bicycle Plan. MTA now regurgitates that mess as the "Hairball Intersection Improvement Project," illegally segmenting that Project and its environmental review into at least 15 pieces to avoid describing the whole Hairball Project.
In June, 2009, this Board certified an Environmental Impact Report ("EIR") on that Project, including the Hairball Project area, which found that it would have significant impacts on traffic, transit, and loading. MTA now incorrectly claims that it may declare part of the previous Project "exempt" under an "existing conditions" theory. The EIR previously certified by this Board is substantial evidence that the "Hairball" Project will have significant impacts. The City cannot now claim the Project is "exempt" by ignoring the findings of that EIR. Instead, if City is now claiming there is a change in the findings of that EIR or is proposing a change in that project, it must prepare a subsequent EIR.
The Hairball Project proposes revising City’s 2009 EIR and its several improper addenda to the EIR affecting the Project description, mitigation, and alternatives analyses. The agency may not retroactively exempt this or any project from environmental review by segmenting it or by post hoc revisions. Rather, the agency must follow the procedures set forth in CEQA for review of the whole Project. Any revisions to the Project and its previous environmental review and proposed mitigation measures and alternatives require a subsequent EIR ("SEIR") before approval. In any event, the environmental review of the Hairball Project must begin with an initial study.
The Hairball Project will have significant impacts under CEQA, including impacts on transportation, transit, air quality, greenhouse gas (GHG), energy consumption, public safety, loading and parking. It will also cause indirect impacts by displacing marginal residents who live in parked vehicles and in homeless camps on the streets, so that a small number of bicyclists can claim exclusive use of those streets, undisturbed by the view of those other people occupying that public space. (See Exhibits H and I, attached) Indirect impacts must also be considered in the environmental analysis of the Project, since they may cause direct and cumulative physical impacts on the environment.
Even if the Project's unlawful segmentation could be ignored, the Hairball Project segments M, N, and O do not fall within the claimed section 15301 exemption. Further, exceptions apply that preclude categorical exemption, particularly due to the Project's cumulative impacts.
Therefore, the claimed "categorical exemption" does not apply. This Board should return this Project to the lead agency, City's Planning Department, for environmental review of the whole Hairball Project to comply with CEQA, beginning with an initial study.
BACKGROUND FACTS AND EXISTING CONDITIONS
MTA and the San Francisco Bicycle Coalition, a private lobbying organization, created the Hairball as part of its 2004-2005 Bicycle Plan Project and now demands that it should be further changed again. As part of that project, MTA insisted on creating bicycle lanes across the heavily used Cesar Chavez Street/Bayshore Boulevard traffic corridors and across freeway on- and off-ramps to Highways I-101 and I-289. Those corridors serve major freight, industrial, and other transportation uses and access to major freeways.
MTA's convoluted design eliminated traffic lanes, turning, and hundreds of parking spaces on those corridors in the heavy, industrial traffic stream that it now calls the Hairball Project area. The conditions created by MTA caused increased traffic congestion, dangerous lane changes at and near freeway on and off ramps, and by parking and loading zone removal in industrial, business, and residential areas, endangering the public safety of thousands of travelers and freight operations to install bicycle lanes for fewer than 100 bicyclists---separated "Class IV" bicycle lanes that exclude the use of that public street space by everyone except bicyclists.
This Board certified the Bicycle Plan Project EIR on June 26, 2009. City's EIR identified 135 significant impacts on traffic, transit, and loading from that Project, including 27 in the Hairball Project area (footnote 2). This Board nevertheless approved that Project on August 4, 2009, claiming that the Project's impacts could not be mitigated or avoided, and that the benefits to the 2% of travelers who bicycle outweighed the impacts on the other 98% of travelers on City streets (footnote 3).
This Board's August 4, 2009 findings and its failure to mitigate those impacts, including in the "Hairball" Project area, were invalidated along with the Project approval by the First District Court of Appeal, and they remain in dispute in pending proceedings. (See Anderson v. City and County of San Francisco, Case No. A129910, Unpub.Op., Jan. 14, 2013, p.83.) City may not ignore that Court ruling or the significant impacts in the Hairball Project area identified in the EIR by reincarnating that project under a new name.
In spite of the pending litigation, and the illegality of issuing an "addendum" to an EIR after approving the Project EIR, City's Planning Department issued the "Addendum to Environmental Impact Report" on the 5-5 segment on February 29, 2012. City also issued several other Addenda to the 2009 EIR on the Cesar Chavez and Bayshore parts of the Bicycle Plan project that it now claims are part of its Hairball Project, each of which removed parking and/or traffic lanes.
When this Board certified the EIR and adopted the Project, the segment now called "Hairball," including "Segments M, N, and O," was called "Project 5-5: Cesar Chavez Street Bicycle Lanes, I-280 to US 101 Freeways."
The Bicycle Plan Project approved August 4, 2009, and the October 20, 2010 Addendum to the Bicycle Plan EIR, removed two of six travel lanes on Cesar Chavez Street and hundreds of parking spaces.
The February 29, 2012 Cesar Chavez East Addendum removed another westbound travel lane on Cesar Chavez in the Hairball Project Area, reducing the dangerous freeway ramp area to one traffic lane. It also removed another 117 parking spaces in the Hairball Project area to install bicycle lanes. The unsafe, congested conditions for all travelers was thus created by MTA at the behest of the San Francisco Bicycle Coalition.
The June 24, 2013 Bayshore Addendum ("Project 5-4 Bayshore Boulevard Bicycle Lanes, Cesar Chavez Street to Silver Avenue-Modified Option 2") removed 50 more parking spaces in the cumulative Hairball Project area. That area must also include projects 5-4 and 5-6 in the Bicycle Plan EIR and the addenda to it, since the removal of traffic lanes, parking, loading, and other physical features affect the whole Hairball Project.
On April 28, 2017, MTA staff apparently applied to the Planning Department for an exemption, which was not publicly available until after the MTA Board's September 19, 2017 meeting. (See Environmental Evaluation Application ["EEA"], April 28, 2017, attached as Exhibit B.) On May 26, 2017, the Categorical Exemption (Exhibit A) was allegedly manufactured by Planning.
On September 11, 2017, MTA staff created a Staff Memo, attached as Exhibit C. On September 19, 2017, the MTA Board adopted a Resolution No. 1170919-119, attached as Exhibit D, approving the Project without discussing environmental issues or the unavailable Categorical Exemption. The MTA Board's September 19, 2017 packet included a slide show presentation from its staff, attached as Exhibit E.
As noted, the undated post hoc Categorical Exemption (Exhibit A) at issue here was not publicly available until September 21, 2017, when it was finally produced in response to a Sunshine Ordinance/Public Records Act request. The MTA has yet to produce more detailed records on the Hairball Project in a November 13, 2017 public records request, with the exception of two public comment letters to the MTA Board that were ignored by that Board. (Exhibits H, I)
ARGUMENT
City's illegal segmentation and repackaging strategy avoids its duty to identify and mitigate the Project's significant direct, indirect and cumulative impacts. The whole Hairball Project requires a subsequent environmental impact report under CEQA, since, in addition to the impacts already identified, the Project will now have more impacts of greater severity on traffic, transit, parking, loading, air quality, GHG, energy consumption, and public safety, blight, and displacement. The Hairball Project is not categorically exempt and may not lawfully be segmented to avoid environmental review of the whole Project.
City's 2009 EIR has already admitted that this Project, as originally implemented and as revised, has significant environmental impacts. Moreover, as held by the First District Court of Appeal, City failed to make legally adequate findings to mitigate the significant impacts of the Bicycle Plan Project, including the Hairball Project. City may not under these circumstances declare the Project or any part of it categorically exempt. Where City's own EIR admits the Project's potential significant impacts, the Hairball Project cannot be categorically exempt. (Azusa, supra, 52 Cal.App.4th at p. 1199)
City must first prepare an initial study of the whole Hairball Project, which should have taken place before any approval of the Project or any part of it. (Guidelines, §15063)
I. FAILURE TO ACCURATELY DESCRIBE THE WHOLE PROJECT, STATE EXISTING CONDITIONS, ACKNOWLEDGE, IDENTIFY, AND MITIGATE THE PROJECT’S SIGNIFICANT IMPACTS VIOLATES CEQA
MTA's "Hairball Project" is not accurately described, and MTA provided no CEQA documents before its September 19, 2017 MTA Board hearing. The packet before the MTA Board consisted only of an eleven-page September 11, 2017 Staff Memo and a staff slide show. (Exhibits C and E, attached) The 9/11/17 Staff Memo (Exhibit C, p. 10) states that the Project fell within a "categorical exemption" for a different project citing Planning Case. No. 2017-002118ENV, which has never been publicly available. Later, the Planning Department issued the undated categorical exemption under Planning Case No. 2017-001775ENV that it claimed is its environmental determination on this Project and the subject of this appeal.
In fact, no "categorical exemption" had yet been made publicly available for the proposed "segment" of the "Hairball" Project when City's Staff Memo was issued. The 9/11/17 Staff Memo describes: "near-term improvements, including a buffered bicycle lane on Southbound Bayshore Boulevard, a "new Class IV protected bikeway on northbound Jerrold Avenue from Barneveld Avenue to Bayshore Boulevard," "a new Class II bike lane adjacent to the existing parking on southbound Jerrold Avenue from Barneveld Avenue to Bayshore Boulevard, removing ten unmetered parking spaces and two loading zones on westbound Jerrold Avenue between Bayshore Boulevard and Barneveld Avenue, and installing a new Tow Away No Stopping Any Time restriction from 10 PM to 2 AM on the west side of Barneveld Avenue between McKinnon Avenue and Jerrold Avenue to help address parking congestion and to create parking availability for area businesses." (Exhibit C, p. 4)
The Staff Memo cautions that these segment changes are only "near-term" and that MTA staff are working on "the detailed design of a long-term project that will propose similar changes…but will be designed and constructed with concrete," and that the concrete designs may or may not "require SFMTA Board approval." (Exhibit C, p. 3)
No CEQA documents were in the MTA Board Packet, and none were provided in spite of a public request under the Sunshine Ordinance until after the MTA Board approved the item in violation of CEQA and the Sunshine Ordinance, which require an approving agency to consider the environmental documents supporting a project before approving it. (See, e.g., SF Admin. Code §67.7(d); Laurel Heights I, supra, 47 Cal. 3d at p.394)
After the September 19, 2017 MTA Board approval, the Planning Department produced the secret undated and/or backdated, previously unavailable "CEQA Categorical Exemption Determination," Planning Case No. 2017-01775ENV, which is the subject of this appeal. (Exhibit A.) The 4/28/17 Environmental Evaluation Application (Exhibit B) also was also not publicly available until after the MTA Board meeting.
The MTA Board's packet contains no accurate description of the proposed Hairball Project, its impacts, or proposed mitigation measures. The packet includes only the Staff Report (Exhibit C, and a slide presentation, Exhibit E)
The diagrams of the Hairball Project (Exhibit B, Figures 1 and 2; Exhibit E) show that it includes a large area of major traffic corridors, including Cesar Chavez Street, Potrero Street, Bayshore Boulevard, Jerrold Street, Highway 101, and ramps to and from Highways 101 and 280, where significant industrial operations and warehouses are located. However, Figure 2 in Exhibit B shows the Project as 15 segments, of which only 3 segments, M, N, and O, are described.
The staff report (Exhibit C) only describes "near-term improvements" on Segments L, M, and O, which propose removing parking and industrial loading zones on Jerrold and Barneveld Avenue, and all overnight parking on Jerrold Avenue, which has nothing to do with creating "comfortable" conditions for bicyclists. (Exhibit C, p.4)
The Staff Report complains that Jerrold Avenue "is a challenging location to bicycle due to the high volume of vehicles and specifically large trucks that use this roadway, especially during the morning hours (approximately 700 vehicles on northbound Jerrold during the two hour morning peak period). These vehicle movements conflict with the large number of cyclists who also use this section of Jerrold Avenue during both the morning and evening peak commute hours (approximately 78 cyclists in the two hour morning peak and 70 cyclists in the evening peak period." (Exhibit C, p. 3) There is no supporting evidence for those alleged numbers, since no traffic studies or vehicle counts are provided for the Hairball Project area, including the dates, times, and who took the counts.
There is no explanation of why 70 cyclists over a two-hour period is considered a "large number" or why 700 motor vehicles on one segment is considered insignificant. Without that basic information, the existing conditions in the Project area cannot be accurately described. (e.g., Poet, LLC v. State Air Resources Board ["Poet II"] (2017) 12 Cal.App.5th 52, 79-81 [failure to include whole Project in baseline held an abuse of discretion invalidating project approval]; County of Amador v. El Dorado County Water Agency ["County of Amador"] (1999) 76 Cal.App. 4th 931, 953-954).
The failure to set forth accurate existing conditions and an accurate Project description of the whole Hairball Project violates CEQA, since the public and decisionmakers are deprived of the information necessary to determine the Project's significant impacts. (Poet II, supra, 12 Cal. App. 5th at p.78, 83; County of Amador, supra, 76 Cal.App.4th at p. 953) Conveying false, contradictory, incomplete, and misleading information to the public and decisionmakers is a prejudicial abuse of discretion under CEQA.
The interests of all street users must be considered in an objective baseline, Project description, and impacts analysis to determine the Project's impacts and mitigate them, not as here, only creating "comfortable" conditions for bicyclists. Moreover, deliberately creating obstructions, delays and unsafe conditions for the vast majority of travelers and for industrial freight users to benefit a special interest group that comprises only 2 percent of street users is not a valid or legitimate reason to remove more parking and loading zones. (See, Fn. 3, ante)
II. THERE IS NO ANALYSIS OF CUMULATIVE IMPACTS
The term "cumulative impacts" refers to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts and can result from "individually minor but collectively significant projects taking place over a period of time." (see Guidelines §15130(a)(1); 15355(b); Bakersfield, supra, 124 Cal.App.4th at p.1214) "Proper cumulative impact analysis is vital," because "the full impact of a proposed project cannot be gauged in a vacuum." (Bakersfield, supra, 124 Cal. App.4th at p.1214.) "'[C]onsideration of the effects of a project or projects as if no others existed would encourage the piecemeal approval of several projects that, taken together, could overwhelm the natural environment and disastrously overburden the man-made infrastructure and vital community services. This would effectively defeat CEQA's mandate to review the actual effect of the projects upon the environment.'" (Id. at pp. 1214-1215) Omitting other projects or segments causes an unduly narrow cumulative impacts analysis and prevents accurate identification of impacts and their severity. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692, 723).
The cumulative impacts analysis must occur at the preliminary stage before any determination that a project is categorically exempt. (East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. ["East Peninsula"] (1989) 210 Cal.App.3d 155, 171; Aptos Council v. County of Santa Cruz (2017)10 Cal.App.5th 266, 285; Orinda Ass'n v. Bd. of Supervisors ["Orinda"] (1986) 182 Cal.App.3d 1145, 1171 [whole project must be analyzed at preliminary phase]; Guidelines §15060(c)(2).) Further, "categorical exemptions from CEQA also cannot be found if 'the cumulative impact of successive projects of the same type in the same place, over time is significant." (East Peninsula, supra, 210 Cal.App.3d at p. 171; Guidelines §15300.2(b).)
That analysis did not occur here: There is no analysis of cumulative impacts on transportation, parking, air quality, GHG, energy consumption, and displacement in City's documents.
A. There Is No Analysis Of Cumulative Impacts On Traffic, Transit, Loading, Parking, Air Quality, GHG, And Energy Consumption, Which Are Foreseeable With Implementation Of The Whole Project
The cumulative impacts analysis must precede City's exemption determination as part of the preliminary review. (East Peninsula, supra, 210 Cal.App.3d at p.171; PRC §21065; Guidelines §§ 15060(c)(2); 15065(a)(3).) A cumulative impacts analysis must set forth existing conditions and compare those conditions with the effects of past, current, and probable future projects. (Guidelines §15065(a)(3).)
The cumulative impacts analysis must also show other current and anticipated future projects in the cumulative area that will also affect traffic, public safety, air quality, etc., and then must compare present conditions with conditions assuming those other projects. No such analysis is provided. This Project has "possible environmental effects" that are "cumulatively considerable," meaning "that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." (Guidelines §15065(a)(3).)
There is no analysis of cumulative impacts or an accurate baseline description in the Exemption document. There is no accurate description of the whole Hairball Project or any analysis of the cumulative impacts of the entire Project, or of its direct and indirect impacts.
City's failure to analyze cumulative impacts does not excuse its improper conclusion of no impacts. (Azusa, supra, 52 Cal.App.4th at p. 1198; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311) City's failure to analyze the Project's impacts, including its cumulative impacts, violates CEQA's informational requirements and results in improper piecemealed implementation of the Project. (Poet II, supra, 12 Cal.App.5th at pp.73.) City may not as proposed piecemeal the Hairball Project into small segments to avoid accurate identification of the cumulative and direct impacts of the whole Project, since that segmentation violates CEQA. (Id.)
The City's past, present, and planned future projects on City roadways in the Hairball cumulative area to impede and obstruct vehicle transportation, remove parking, including the Bicycle Plan, "Sustainable Streets," "Vision Zero," and other projects, when combined with this Project, clearly have significant cumulative impacts on transportation, air quality, parking, GHG, energy consumption, and public safety that cannot be considered in a vacuum. The Hairball Project requires an environmental impact report. City must first conduct an initial study. (Guidelines, §15063.)
B. There Is No Analysis Of The Indirect And Cumulative Impacts Of Displacement Of Homeless People And People Living In Vehicles
The categorical exemption completely ignores the impact of displacing people who park for any reason, and it does not acknowledge their presence as an existing condition. (See, e.g., Exhibits H, I.) The Project instead proposes "a tow-away no stopping zone" on the west side of Barneveld Avenue between McKinnon Avenue and Jerrold Avenue, which would "prohibit parking between…10 pm. to 2am. This would assist with prohibiting vehicles from parking overnight or for extended amounts of time and allow employees of the businesses on Jerrold to park during business hours." (Categorical Exemption, p. 15.)
In East Peninsula, the court held the agency prejudicially abused its discretion by failing to consider the significant impacts of both closing a school and moving the students elsewhere. (East Peninsula, supra, 210 Cal.App.3d at p. 172.) The preliminary analysis there erroneously concluded that the project was categorically exempt without first analyzing the cumulative impacts of closing the school along with the impacts of transferring the students to a different school, including traffic and parking impacts. (Id.) The categorical exemption here likewise fails to consider the significant impacts of causing people to move and park elsewhere, which are part of the cumulative impacts of the entire Hairball Project.
Displacing homeless people and people living in vehicles on or near these public streets by making parking illegal at night is also a significant human impact that must be analyzed. (Guidelines, §15065(a)(4); Bakersfield, supra, 124 Cal.App.4th at p. 1213-1215, 1218-1220.) The underlying problem of homelessness is not solved by displacing people but instead aggravates the problem by shunting it elsewhere. In Bakersfield, the court rejected the city's approval of two shopping centers located miles apart, because the EIRs failed to analyze their cumulative impact that might lead to urban decay in the city's downtown area, and they failed to analyze and mitigate cumulative impacts on traffic and air quality.
The court explained, "[W]here economic and social effects result from a physical change that was itself caused by a proposed project, then these economic and social effects may be used to determine that the physical change constitutes a significant effect on the environment." (Bakersfield, supra, 124 Cal.App.4th at p. 1205.) Here, as in Bakersfield, an EIR is required to "trace a chain of cause and effect from a proposed decision on a project through anticipated economic or social changes resulting from the project to physical changes in turn caused by the economic or social changes." (Id.; Guidelines §15131(a).)
Here, the impacts of more parking removal and restrictions in the Hairball Project area may result in displacement and homelessness causing physical impacts elsewhere in the City, which must be analyzed and mitigated. Instead, MTA's Staff Report states: "There are oversized Recreational Vehicles (RVs) that use the area of Barneveld Avenue where the parking restrictions are proposed, and while the SFTA understands the needs of this community, this project aims to balance the needs of all users of the project area while prioritizing traffic safety." (Ex. C, p. 5.)
The document claims with no substantiation that there are "approximately 178 unregulated parking spaces in the area." There is no explanation of how evicting "this community" will resolve any "traffic safety" concerns, since the vehicles are parked, not moving. Further, there is no evidence of any other "unregulated" parking spaces "in the area." (Id.; See also Exhibits F, G [newspaper articles on City-sponsored sweeps of homeless from the area on behalf of bicyclists]; and Exhibits H and I [public comments to MTA Board].)
The Bicycle Plan Project and its EIR addenda have already removed hundreds of parking spaces in the Project Area, and the Hairball Project now proposes more parking removal and restrictions. Those proposed restrictions, prohibiting parking between 10 p.m. and 2 a.m., do not contribute to the Hairball Project's alleged "purpose" to "make three key portions of the Hairball paths safer and easier to use for pedestrians and bicyclists." (Ex. A, p. 8.)
Displacing and evicting people who MTA surmises may be sleeping in their vehicles does not serve that "purpose."
Furthermore, the public streets and sidewalks belong to everyone, not just users of bicycles or private businesses. Parking removal may have adverse direct and secondary impacts on any traveler living in or patronizing businesses in the Project area. Under CEQA, the environment, including City streets, belongs to everyone. (PRC §21000.)
The failure to consider the impacts of parking removal and displacement and ignoring existing conditions is contrary to CEQA's mandate and requirements.
III. CITY MAY NOT SEGMENT THE PROJECT TO AVOID ENVIRONMENTAL REVIEW
A. City Admits That It Is Segmenting The Project, Which Violates CEQA
Planning admits that it is segmenting the environmental analysis and approval of the "Hairball" Project. (See Exhibit A, p.9 [showing 15 segments of Project]; Exhibit B, p.2-3, Figures 1, 2.) Of 15 segments in the "Hairball" project, MTA claims it is only approving three, and that those three segments are exempt. (Exhibit A.) MTA does not dispute that it is segmenting this Project. In its Application for Environmental Evaluation, MTA depicts a large Hairball Project area "where Cesar Chavez Street, Portrero [sic] Avenue and Bayshore Boulevard intersect under the Highway 101 interchange as the Project area. (Exhibit B, p. 2-3, Figures 1 and 2.) Figure 2 in that document shows the 15 segments, lettered A through O, and "existing pedestrian and bicycle routes" in the Project area. A large circle is drawn around segments M, N, and O. (Id., Figure 2.)
Such segmentation, also called "piecemealing," has long been recognized as a violation of CEQA. (See, e.g., Association for a Cleaner Environment v. Yosemite Community College Dist. ["ACE"] (2004) 116 Cal.App.4th 629, 637-638; Orinda, supra, 182 Cal.App.3d at pp. 1171-1172.)
In fact, similar segmentation in City's implementation of the 2005 Bicycle Plan resulted in a permanent injunction against the Project and a Peremptory Writ of Mandate requiring an environmental review of that whole project, not just pieces of it, with the Court clearly stating:
The City cannot implement this project piece by piece, claiming that the impact of each small project does not have a significant environmental effect. Such reasoning is akin to trying to avoid review of a timber harvest plan by removing trees one at a time, claiming each tree removal to be independent and exempt. At the end of the process the forest would be gone or the entire City streetscape reconfigured without environmental review ever having happened…(November 7, 2006 Order Granting Petition for Peremptory Writ of Mandate and Permanent Injunction, SF Superior Ct. Case No. CPF-05-505509, p. 14)
As courts have consistently noted, CEQA's definition of "project" is interpreted broadly to encompass "the whole of an action." (Guidelines §15378(a); e.g., Poet II, supra, 12 Cal.App.5th at pp.57, 72.) A "project" is an "activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is…directly undertaken by any public agency." (Id. at p.73; Pub.Res.Code §21065.) CEQA's definition is interpreted broadly to ensure "CEQA's requirements are not avoided by chopping a proposed activity into bite-sized pieces which, when taken individually, may have no significant effect on the environment." (Id.) Here, both the Hairball Project and its implementation are "activities" under CEQA, and the whole Project must be analyzed, not segments of it.
In ACE, the court held that a categorical exemption must apply to the whole Project, not just pieces of it. (ACE, supra, 116 Cal.App.4th at p.640 [finding that even if a categorical exemption applied to part of the project, it did not "cover the whole of the action that constitutes the project"].) That principle applies here: City cannot avoid CEQA's requirements by "'chopping up proposed projects into bite-sized pieces.'" (Id. at p.638-639) City must begin by preparing an initial study of the whole Hairball Project. (Id. at p. 640; Guidelines §15063.)
Here, MTA proposes to illegally conceal the actual impacts of the Hairball Project, a strategy prohibited by CEQA. The Categorical Exemption mistakenly claims that "Segments M, N, and O" have "independent utility" from the rest of its Hairball Project. (Ex.C, p.7.) That notion is not legally valid and plainly violates CEQA. (See, e.g., Poet II, supra, 52 Cal.App.5th at pp. 72-77; Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.1214, 1226-1230.)
The segmentation of the "Hairball" Project into tiny pieces is clearly an improper strategy to avoid the required environmental review of the whole Project. As MTA clearly shows in its Application for Environmental Evaluation, the large Hairball Project consists of a Project segmented into 15 pieces. (Exhibit A, Figures 1 and 2.) Based on City's record, it is indisputable and clearly foreseeable that the MTA plans and has as its goal a much larger Hairball Project, and is piecemealing its environmental review to avoid analysis and mitigation of the impacts of the whole Project. (Ibid.)
Where a proposed project is reasonably foreseeable, it must be analyzed as a whole, not in piecemealed segments, so that its impacts may be identified and mitigated. An accurate description of the Project and the existing conditions in the whole Project and cumulative areas are essential to complying with CEQA's requirements. (Poet II, supra, 52 Cal. App. 5th at pp. 74-75.) Those requirements are violated by segmentation into small pieces, both because that analysis cannot take place, and because the failure to analyze the Project violates CEQA's informational requirements, both to the decisionmakers and the public. (Id.; ACE, supra, 116 Cal.App.4th at p. 640)
City's segmentation to avoid identifying and mitigating impacts of the whole Project also violates CEQA's requirements to analyze direct, indirect, and cumulative impacts. A project under CEQA includes the whole Project. There is no coherent analysis of the Hairball Project's significant cumulative impacts.
B. City Has Already Admitted That The Project Will Have Significant Impacts
Furthermore, the Project was reviewed in the 2009 EIR and was found to have significant impacts. MTA may not legally disregard those findings. An EIR is substantial evidence of impacts, which means City may not declare this Project categorically exempt. (Azusa, supra, 52 Cal.App.4th at p. 1199.)
Since MTA is proposing revisions of the 2009 analysis and Findings, it must do so with a subsequent EIR, not by post hoc piecemealed exemptions.
IV. THE PROJECT IS NOT CATEGORICALLY EXEMPT FROM CEQA
The City did not make publicly available, timely provide, or post a copy of the alleged "categorical exemption" of the proposed Project or any segment of it, precluding meaningful public comment on it. As noted, City cannot lawfully piecemeal exemptions to avoid environmental review under CEQA.
A. City's 2009 EIR Has Already Found Significant Impacts, Which Precludes Any Categorical Exemption
The Hairball Project is not exempt as claimed (Staff Report, p. 7) under 14 Cal. Code Regs. ("Guidelines") §15301, because it will have significant direct and cumulative impacts on the environment, as already admitted in the Bicycle Plan DEIR and in City's Findings. That admission precludes any categorical exemption. (Azusa 52 Cal.App.4th at p.1099. )
B. Even If Its Significant Impacts Could Be Ignored, The Project Does Not Fit Within The Section 15301 Exemption
The Hairball Project does not fit within the section 15301 exemption as a "minor alteration" of existing facilities, since it changes the existing street configurations. Making overnight parking illegal in the area is another reason this Project does not fit within that exemption. Other plans that are undisclosed for the other segments of the Hairball Project also preclude claiming such an exemption. City's segmented "categorical exemption," including the Exemption here, is illegal piecemealing under CEQA, since it deliberately evades analyzing and mitigating the cumulative impacts of the Hairball Project.
C. Even If Its Significant Impacts Could Be Ignored, The Cumulative Impacts And Unusual Circumstances Exceptions Apply Under Guidelines §15300.2
There is no analysis in available documents of the exceptions that may apply under Guidelines §15300.2, including the cumulative impacts exception and the unusual circumstances exception. The Hairball Project will have cumulative impacts under Guidelines §15300.2, since it clearly proposes many "successive project(s) of the same type, in the same place, over time." Further, in this instance, the large traffic volumes and proposed reduction in parking and loading capacity constitute unusual circumstances. (Guidelines, §15300.2(c).) City's failure to analyze cumulative impacts is not excused by declaring the Project exempt without that analysis. (East Peninsula, supra, 210 Cal.App.3d at p.171.)
This Project also has "possible environmental effects" that are "cumulatively considerable," meaning "that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects," which as noted preclude any exemption from CEQA. (Guidelines §15065(a)(3).)
The City's past, present, and planned future incursions onto City's roadways to impede vehicle transportation, remove parking, force turns, and otherwise adversely impact traffic include past extensive transportation impacts due to the Bicycle Plan, "Sustainable Streets," "Vision Zero," and other Projects that, combined with the present Project, have potentially significant cumulative impacts on transportation, air quality, GHG, energy consumption, parking, and public safety that cannot be considered in isolation.
V. CITY'S FAILURE TO ACCURATELY ANALYZE THE PROJECT'S IMPACTS IS NOT EXCUSED BY SECTION 21099 OF CEQA
Planning's Categorical Exemption document excuses itself from analyzing the Hairball Project's impacts by invoking a document issued by the Planning Department, claiming "The proposed bicycling safety improvement project and reduction in through lanes is considered an Active Transportation Project, in accordance with CEQA Section 21099 - Modernization of Transportation Analysis, and is therefore presumed to not significantly impact VMT and no further VMT analysis is required." (Exhibit A, p.16.)
Public Resources Code section 21099 does not allow City to excuse itself from analyzing transportation and other impacts. That statute only states that the state Office of Planning and Research may certify and adopt Guidelines for particular types of review, which has not yet happened.
City has no authority to create its own version of CEQA: "Amendments to the guidelines apply prospectively only." (Guidelines §15007(b) [Public agencies may only implement Guidelines amendments after the effective date of the amended Guidelines]; see also, East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 299-300, fn.6; Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 784 [Checklists do not support or provide a foundation for city's environmental determination].)
City's claim is invalid on its face that a "checklist" that it improperly developed to implement PRC §21099 justifies the Project.
VI. FAILURE TO PROVIDE PUBLIC NOTICE AND INFORMATION ON THE PROJECT VIOLATES CEQA'S REQUIREMENT OF INFORMED PUBLIC PARTICIPATION IN THE DECISIONMAKING PROCESS
There has been no information or outreach to the general public on the Hairball Project by the City. It is clear from the Staff Report that MTA only sought "feedback" from Project proponents, including Supervisor Hillary Ronen, the "San Francisco Bike Coalition," and MTA's own staff. (Exhibit C, "Stakeholder Engagement," p. 6; Exhibit F [San Francisco Chronicle, 8/4/17 "S.F. Supervisor pushes to untangle freeway Hairball;" Exhibit G [San Francisco Examiner, "New plan to ban encampments at 'Hairball' emerges as homeless and cyclists clash"].) The general public, including thousands of travelers on the city streets in the Hairball Project area, has been completely left out of that alleged "stakeholder engagement."
The Hairball Project will have significant impacts on all users of the affected corridors, not just bicyclists, Ms. Ronen, and MTA staff. Because the Project has significant impacts on freeway access, it is of regional and statewide importance. MTA claims with no supporting evidence that it contacted "merchants along Jerrold Avenue to understand parking loss impacts and to develop a balanced solution." In fact, the Project ignores all of the Project's significant impacts on the vast majority of travelers, residents and businesses in the area. (Staff Memo, p. 6.)
Just as serious, the public has been deprived of the opportunity for meaningful input on the Hairball Project, which violates CEQA's basic purpose and mandate.
CONCLUSION
Planning may not segment the Hairball Project into pieces to avoid environmental review of the Project as required by CEQA. The Hairball Project is not exempt from CEQA. City's 2009 EIR found 27 significant impacts on traffic, transit and loading from its previous version of the Hairball Project, which is substantial evidence that the Project will have significant impacts.
That evidence precludes any categorical exemption of the Hairball Project or any part of it. The Hairball Project may also have significant direct and cumulative impacts on transportation, transit, parking, air quality, GHG, public safety, including emergency vehicle movement, noise, and human impacts that must be identified, analyzed, and mitigated under CEQA.
Further, the segmentation of the Hairball Project into more than 15 separate parts is illegal piecemealing. The whole Hairball Project must be accurately described, with its environmental impacts identified in an EIR, and those impacts must be mitigated in legally adequate findings under CEQA before this Project can be approved. Further, the failure to make environmental documents and other information on the Hairball Project publicly available violates CEQA's requirements.
For these reasons, the Board of Supervisors should grant this appeal and return this Project to the agency until the Project can be accurately described and analyzed under CEQA, beginning with an initial study of the whole Hairball Project.
Mary Miles
[1] See San Francisco Bicycle Plan Draft Environmental Impact Report, November 2008, Post-Judgment Administrative Record [PJR], SF Super. Court Case No. CPF-05-505509, 17:8547, 8693-8696, 8923, 8945-8947; 18:9267-9273, 9333-9335, 9447. See also, DEIR Projects 5-4 - 5-6, PJR 17: 8693-8696, 8923, 8942-8949,18:9252-9295, 9329-9354, 9443-9450; see also February 29, 2012 Addendum to Environmental Impact Report (Bicycle Plan EIR Project 5-5 "Cesar Chavez Street East Bicycle Lane Project" [removing westbound travel lane and 117 parking spaces]); October 20, 2010 Addendum to Bicycle Plan Environmental Impact Report (Bicycle Plan EIR Project 5-6 "Cesar Chavez Streetscape Design" Cesar Chavez, Hampshire Streets/US101 to Sanchez Street [removing 99 parking spaces]); and Bayshore Addendum June 24, 2013 (Bicycle Plan EIR Bayshore Addendum "Project 5-4 Bayshore Boulevard Bicycle Lanes, Cesar Chavez Street to Silver Avenue-Modified Option 2.")
LIST OF EXHIBITS
A [undated] San Francisco Planning Dept.: CEQA Categorical Exemption Determination
B 4/28/17 MTA Memo from Thalia Leng to Christopher Espiritu: Application for Environmental Evaluation
C 9/11/17 MTA Anonymous: Staff Report
D 9/18/17 MTA Board Resolution 1170919-119
E 9/18/17 MTA Board Staff Slide Show
H 9/14/17 Public comment from Melodie submitted to MTA Board
I 9/19/17 Public comment from Will Daley submitted to MTA Board
Labels: Bicycle Coalition, Bicycle Plan, CEQA, City Government, Examiner, Hairball, Hillary Ronen, Homelessness, Muni, Parking, SF Chronicle, Traffic in SF
